This chapter assesses the extent to which the common law system differs from a codified system in the application of the Francovich principle and the extent to which this results in divergence. A comparison of the English and German law of state liability suggests that it is easier to achieve an integration of the Francovich remedy in English courts than it is in German courts. In a more pragmatic case-by-case approach, English courts have successfully embedded the Francovich remedy into English law. The German position, on the other hand, is marked by a more reluctant attitude. Case examples have shown that the German Federal High Court (BGH, Bundesgerichtshof) does not favour a Europeanized version of the codified tort liability, possibly leaving this to the legislature.
Kunnecke, M. (2008). Divergence and the Francovich remedy in German and English Courts. In S. Prechal, & B. van Roermund (Eds.), The Coherence of EU Law: The Search for Unity in Divergent Concepts, 233 - 254. Oxford University Press (OUP). doi:10.1093/acprof:oso/9780199232468.001.0001